ICYMI: Pa. same-sex marriage lawsuits

In the wake of the decision in Windsor v. U.S. — which declared the Defense of Marriage Act unconstitutional — lawsuits dealing with same-sex marriage have been filed in states across the country, from Kentucky to New Mexico to here in Pennsylvania.

Currently, there are at least two court cases in Pennsylvania, and one proposed bill in Harrisburg, that deal with same-sex marriage in the state.

In one court case before a Pennsylvania Commonwealth court, the state is asking for the Montgomery County Register of Wills to stop issuing same-sex marriage licenses, because it violates state laws.

In another case before a federal district court, the American Civil Liberties Union is asking for Pennsylvania’s same-sex marriage ban to be overturned as unconstitutional.

The newly proposed Pennsylvania House bill, on the other hand, attempts to reform current same-sex marriage restrictions in the state.

The Daily Pennsylvanian took a look at what each of these projects are trying to achieve, and what could come of them:

Whitewood v. Corbett

July 9, 2013 — The ACLU of Pennsylvania, along with independent counselors that included Law School professor Seth Kreimer, filed suit in federal court against Pennsylvania’s top officials on behalf of 23 plaintiffs who were denied certain rights under Pennsylvania’s current same-sex marriage law.

Two of the plaintiffs, Len Reiser and Fernando Chang-Muy, are lecturers at Penn Law who have been a couple for over 32 years.

Both Reiser and Chang-Muy said in an interview with the DP in July that they want the state to “acknowledge what is” — that they are a married couple as they have acted in all respects as a married couple would.

Related: Law lecturers sue Gov. Corbett for right to marriage

Already, one of the defendants in the suit, Attorney General Kathleen Kane, said that she will not defend the state’s officials being sued — including Gov. Tom Corbett — because she “cannot ethically defend the constitutionality of Pennsylvania’s DOMA.”

In response, Corbett’s Office of General Counsel has said that it will defend him and the other state officials charged in the suit.

While there has not been much recent court action involving the Whitewood case, a stipulation between the opposing parties indicates that Corbett and the other defendants have until Sept. 30 to respond to the ACLU’s complaint.

Pa. Health Department v. Hanes

July 30, 2013 — Corbett’s office filed suit against Montgomery County Register of Wills D. Bruce Hanes, asking a Commonwealth court to stop him from issuing further same-sex marriage licenses.

On Sept. 12, the judge hearing the case against Hanes ruled that the Register of Wills must comply with Pennsylvania’s current Marriage Law, and that he must “cease and desist from issuing marriage licenses to same-sex applicants,” according to court records.

Related: Pa. official sued for issuing same-sex marriage licenses

Prior to the court’s ruling, Hanes had issued 174 marriage licenses to same-sex couples.

While Pennsylvania General Counsel James Schultz, who represented Corbett in the suit against Hanes, said that he “appreciate[d] the court’s consideration of the legal and social complexities of this issue,” the Montgomery County Solicitor said that he will file an appeal of the decision on behalf of Hanes in the coming days.

Federal v. State

What’s important to note about these cases, though, is that while Hanes’ case is being heard by a state court, a federal court is hearing the Whitewood case.

This means “if the Whitewood plaintiffs win and a federal court says that Pennsylvania is required to recognize same-sex marriages, then Hanes will presumably win his case,” or the Department of Health will drop the suit, Penn Law professor Kermit Roosevelt said in an email.

Roosevelt, however, added that “even if the Hanes court does decide the constitutional issue” of whether he can use discretion to interpret the Pennsylvania constitution differently than the Department of Health, his case is a state case “and wouldn’t affect a federal court’s decision of a federal constitutional issue.”

House Bill 1647

Sept. 9, 2013 — While some parties have chosen to settle questions related to same-sex marriage through the courts, State Rep. Mark Cohen (D-Philadelphia) and State Rep. Michelle Brownlee (D-Philadelphia), among others, have joined together to introduce legislation to change Pennsylvania’s current marriage laws.

While House Bill 1647 would not explicitly allow state officials to perform same-sex marriages, it would recognize any same-sex marriages that were performed outside of Pennsylvania.

Related: Tax status complicated for same-sex couples

The bill would also allow religious sects that did not wish to perform same-sex marriages the opportunity to refrain from doing so.

“It certainly is an uphill battle in Pennsylvania to pass this with the Republicans in control of the legislature,” Cohen said.

However, he noted that “members of the LGBT community deserve to have the marriages they choose … They should have the full legal rights that heterosexual people [currently] have.”

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